The U.S. Court of Appeals for the Tenth Circuit has become the latest federal appellate court to weigh in on the constitutionality of the so-called “merit selection” method for selecting state court judges.1 Like the Eighth Circuit and Ninth Circuit courts before it, the Tenth Circuit upheld the key provision of the “merit selection” process against an Equal Protection Clause challenge.2 The Tenth Circuit’s decision was not unanimous, however. Further, the two judges in the majority disagreed on the appropriate analysis and application of relevant Supreme Court precedent. The divergent reasoning applied by the Tenth Circuit demonstrates the need for clarity from the Supreme Court. Only time will tell if such clarity will be provided.

The Kansas Judicial Nominating Commission

Kansas, like a host of other states, utilizes the “merit selection” process for nominating and appointing state appellate court judges.3 Commonly referred to as the “Missouri Plan,” the process features judicial nominating commissions that are charged with selecting nominees for state appellate courts. Until the middle of the twentieth century, state court judges in Kansas were popularly elected. However, in part as a result of the infamous “Kansas triple play,”4 Kansas voters approved a constitutional amendment establishing the Kansas Supreme Court Nomination Commission (Commission) in 1958.5 Shortly thereafter, Kansas enacted legislation implementing the amendment and eventually made it applicable to the Kansas Court of Appeals.6

The Commission is composed of nine members: a chairperson who is a licensed attorney, and one attorney and one non-attorney member from each of the four U.S. congressional districts in Kansas.7 Importantly, the chairperson is elected at large by licensed Kansas attorneys,8 and the four attorney members are elected by the licensed attorneys residing in their respective congressional districts.9 The non-attorney members are appointed by the governor.10 Thus, a controlling majority of the Commission is made up of attorneys elected exclusively by other attorneys.

The Commission meets when there is a judicial vacancy and submits a list of three nominees to the governor.11 The governor must make the appointment from among the list of nominees selected by the Commission.12 If the governor fails to do so, the Commission makes the appointment itself.13 Thus, the Commission presents the governor with exclusive options from which to make the appointment. Additionally, in practice, the Commission’s power can be manipulated to exercise even greater control over the appointment process. For example, the Commission may nominate two unqualified or politically radioactive nominees, leaving the governor with little choice but to nominate the Commission’s preferred candidate.14

In Dool v. Burke, four non-attorneys and registered Kansas voters filed suit in the U.S. District Court for the District of Kansas alleging that they were unconstitutionally denied the right to vote in the election for the attorney members of the Commission.15 Specifically, the plaintiffs argued that limiting the election of these Commission members to licensed attorneys violates the “one person, one vote” principle of the Equal Protection Clause of the Fourteenth Amendment by denying non-attorneys the right to vote. The plaintiffs’ request for a preliminary injunction was denied by the district court and the State’s motion to dismiss was ultimately granted.16 The plaintiffs promptly appealed to the Tenth Circuit.

In a per curiam ruling, the Tenth Circuit affirmed the district court by a vote of 2-1.17 Although both judges in the majority applied rational basis scrutiny in upholding the attorney-only elections, they did so for different reasons. Generally, laws denying the franchise to a class of otherwise qualified voters are subject to strict scrutiny review under the Equal Protection Clause of the Fourteenth Amendment.18 The Supreme Court has carved out an exception to this rule, however, for “limited purpose” elections that have a disparate impact on the specific class of citizens permitted to vote.19 Laws limiting the franchise in such “limited purpose” elections receive only rational basis scrutiny.20

In Dool, the non-attorney challengers argued that strict scrutiny was applicable because the election of Commission members is an election of “general interest” affecting all Kansas voters.21 In separate concurring opinions, the majority disagreed. Judge Matheson opined that the Commission “performs a limited purpose” and “has a disproportionate effect on the voting population of attorneys.”22 Specifically, Judge Matheson noted that the Commission has a “limited role” and “does not make, administer, or enforce laws” or have “taxing or borrowing authority.”23 Accordingly, he found that the election of Commission members qualified as a “limited purpose” election warranting deferential rational basis scrutiny.24

Conversely, Judge O’Brien found that the Commission did not fit within the exception for “limited purpose” elections set out in Ball and Salyer, but he nonetheless applied rational basis scrutiny to uphold the law. To reach this conclusion, Judge O’Brien relied upon a hodgepodge of Supreme Court and Court of Appeals precedent to create a new “threshold inquiry” for Equal Protection analysis. According to Judge O’Brien, strict scrutiny “cannot reasonably apply to every election unable to be wedged into the fact-bound and exceedingly narrow exception established in Salyer and Ball.”25 Instead, he determined that strict scrutiny analysis should only apply to the elections of officials performing “general governmental functions.”26 As a result, though Judge O’Brien concluded that the election of Commission members was not a “limited purpose” election, he found that the “Commission does not exercise the type of governmental functions necessary to trigger strict scrutiny.”27 Like Judge Matheson, Judge O’Brien determined that the Commission is “removed from the day-to-day decisions affecting the lives of the electorate” and “has no say in matters of safety or welfare.”28 And, like Judge Matheson, Judge O’Brien concluded that limiting the franchise to attorneys furthered a rational state interest of “limit[ing] the influence of politics on the nomination process and ensur[ing] the quality of its judicial nominees.”29

In dissent, Judge McKay exposed this inherent insufficiency in the majority’s reasoning, noting that “[t]he selection of judicial candidates is quintessentially governmental in nature . . . .”30 Quoting an article authored by Professor Nelson Lund, the dissent noted that the election in question warranted strict scrutiny ‘“for the same reason that the Supreme Court applies strict scrutiny to primary elections conducted by political parties and elections to the electoral college.”’31 In other words, it is of no matter that the election of Commissioners is a preliminary step in the selection of judges, because the Commission serves a powerful role in “determining who will exercise one of the three most critical governmental functions,” i.e. the judicial function.32 As Judge McKay concluded: ‘“[b]y delegating to the state’s lawyers the authority to elect a controlling majority of a body that exercises almost all of the discretion involved in appointing supreme court justices, Kansas has virtually given the state bar the authority to elect those who choose the justices. The State’s choice of a complex procedure that obscures that effect cannot alter the reality of the effect.’”33 Accordingly, Judge McKay found that strict scrutiny was appropriate, and would have struck down the attorney-only elections as unconstitutional.

In sum, Dool represents another setback to those hoping to reduce the control of state bar associations over the selection of state appellate judges. However, Judge McKay is the first to author a dissent in this series of cases, and it warrants watching to see if his arguments prove persuasive to future courts considering such challenges.

*Mr. Callen and Mr. Whitworth are attorneys who practice in Kansas City, Mo.

3 Currently, 35 states use some method of the “Missouri Plan” to select their judicial nominees. Each with varying forms of how the commission is composed. Commissions are composed of as little as six members (e.g., North Dakota) or as many as 49 members (e.g., Minnesota).

4 Jeffrey D. Jackson, The Selection of Judges in Kansas: Comparison of Systems, 69 J. Kan. B. Ass’n (Jan. 2000), at 33-34 (Governor Fred Hall had been defeated in his party’s primary so he decided to go after the next best thing, that being Chief Justice of the Kansas Supreme Court. He convinced a loyal supporter, then Chief Justice, Bill Smith, to resign. Next, he ceded the governorship to his Lieutenant Governor, John McCuish, who then appointed Hall to the vacant Chief Justice position. Alas, the Kansas triple play.).

The U.S. Court of Appeals for the Tenth Circuit has become the latest federal appellate court to weigh in on the constitutionality of the so-called “merit selection” method for selecting state court judges.1 Like the Eighth Circuit and Ninth Circuit courts before it, the Tenth Circuit upheld the key provision of the “merit selection” process against an Equal Protection Clause challenge.2 The Tenth Circuit’s decision was not unanimous, however. Further, the two judges in the majority disagreed on the appropriate analysis and application of relevant Supreme Court precedent. The divergent reasoning applied by the Tenth Circuit demonstrates the need for clarity from the Supreme Court. Only time will tell if such clarity will be provided. The Kansas Judicial Nominating CommissionKansas, like a host of other states, utilizes the “merit selection” process for nominating and appointing state appellate court judges.3 Commonly referred to as the “Missouri Plan,” the process features judicial nominating commissions that are charged with selecting nominees for state appellate courts. Until the middle of the twentieth century, state court judges in Kansas were popularly elected. However, in part as a result of the infamous “Kansas triple play,”4 Kansas voters approved a constitutional amendment establishing the Kansas Supreme Court Nomination Commission (Commission) in 1958.5 Shortly thereafter, Kansas enacted legislation implementing the amendment and eventually made it applicable to the Kansas Court of Appeals.6The Commission is composed of nine members: a chairperson who is a licensed attorney, and one attorney and one non-attorney member from each of the four U.S. congressional districts in Kansas.7 Importantly, the chairperson is elected at large by licensed Kansas attorneys,8 and the four attorney members are elected by the licensed attorneys residing in their respective congressional districts.9 The non-attorney members are appointed by the governor.10 Thus, a controlling majority of the Commission is made up of attorneys elected exclusively by other attorneys. The Commission meets when there is a judicial vacancy and submits a list of three nominees to the governor.11 The governor must make the appointment from among the list of nominees selected by the Commission.12 If the governor fails to do so, the Commission makes the appointment itself.13 Thus, the Commission presents the governor with exclusive options from which to make the appointment. Additionally, in practice, the Commission’s power can be manipulated to exercise even greater control over the appointment process. For example, the Commission may nominate two unqualified or politically radioactive nominees, leaving the governor with little choice but to nominate the Commission’s preferred candidate.14 In Dool v. Burke, four non-attorneys and registered Kansas voters filed suit in the U.S. District Court for the District of Kansas alleging that they were unconstitutionally denied the right to vote in the election for the attorney members of the Commission.15 Specifically, the plaintiffs argued that limiting the election of these Commission members to licensed attorneys violates the “one person, one vote” principle of the Equal Protection Clause of the Fourteenth Amendment by denying non-attorneys the right to vote. The plaintiffs’ request for a preliminary injunction was denied by the district court and the State’s motion to dismiss was ultimately granted.16 The plaintiffs promptly appealed to the Tenth Circuit. In a per curiam ruling, the Tenth Circuit affirmed the district court by a vote of 2-1.17 Although both judges in the majority applied rational basis scrutiny in upholding the attorney-only elections, they did so for different reasons. Generally, laws denying the franchise to a class of otherwise qualified voters are subject to strict scrutiny review under the Equal Protection Clause of the Fourteenth Amendment.18 The Supreme Court has carved out an exception to this rule, however, for “limited purpose” elections that have a disparate impact on the specific class of citizens permitted to vote.19 Laws limiting the franchise in such “limited purpose” elections receive only rational basis scrutiny.20In Dool, the non-attorney challengers argued that strict scrutiny was applicable because the election of Commission members is an election of “general interest” affecting all Kansas voters.21 In separate concurring opinions, the majority disagreed. Judge Matheson opined that the Commission “performs a limited purpose” and “has a disproportionate effect on the voting population of attorneys.”22 Specifically, Judge Matheson noted that the Commission has a “limited role” and “does not make, administer, or enforce laws” or have “taxing or borrowing authority.”23 Accordingly, he found that the election of Commission members qualified as a “limited purpose” election warranting deferential rational basis scrutiny.24Conversely, Judge O’Brien found that the Commission did not fit within the exception for “limited purpose” elections set out in Ball and Salyer, but he nonetheless applied rational basis scrutiny to uphold the law. To reach this conclusion, Judge O’Brien relied upon a hodgepodge of Supreme Court and Court of Appeals precedent to create a new “threshold inquiry” for Equal Protection analysis. According to Judge O’Brien, strict scrutiny “cannot reasonably apply to every election unable to be wedged into the fact-bound and exceedingly narrow exception established in Salyer and Ball.”25 Instead, he determined that strict scrutiny analysis should only apply to the elections of officials performing “general governmental functions.”26 As a result, though Judge O’Brien concluded that the election of Commission members was not a “limited purpose” election, he found that the “Commission does not exercise the type of governmental functions necessary to trigger strict scrutiny.”27 Like Judge Matheson, Judge O’Brien determined that the Commission is “removed from the day-to-day decisions affecting the lives of the electorate” and “has no say in matters of safety or welfare.”28 And, like Judge Matheson, Judge O’Brien concluded that limiting the franchise to attorneys furthered a rational state interest of “limit[ing] the influence of politics on the nomination process and ensur[ing] the quality of its judicial nominees.”29In dissent, Judge McKay exposed this inherent insufficiency in the majority’s reasoning, noting that “[t]he selection of judicial candidates is quintessentially governmental in nature . . . .”30 Quoting an article authored by Professor Nelson Lund, the dissent noted that the election in question warranted strict scrutiny ‘“for the same reason that the Supreme Court applies strict scrutiny to primary elections conducted by political parties and elections to the electoral college.”’31 In other words, it is of no matter that the election of Commissioners is a preliminary step in the selection of judges, because the Commission serves a powerful role in “determining who will exercise one of the three most critical governmental functions,” i.e. the judicial function.32 As Judge McKay concluded: ‘“[b]y delegating to the state’s lawyers the authority to elect a controlling majority of a body that exercises almost all of the discretion involved in appointing supreme court justices, Kansas has virtually given the state bar the authority to elect those who choose the justices. The State’s choice of a complex procedure that obscures that effect cannot alter the reality of the effect.’”33 Accordingly, Judge McKay found that strict scrutiny was appropriate, and would have struck down the attorney-only elections as unconstitutional. In sum, Dool represents another setback to those hoping to reduce the control of state bar associations over the selection of state appellate judges. However, Judge McKay is the first to author a dissent in this series of cases, and it warrants watching to see if his arguments prove persuasive to future courts considering such challenges. *Mr. Callen and Mr. Whitworth are attorneys who practice in Kansas City, Mo. Endnotes1 See Dool v. Burke, No. 10–3320, 2012 WL 4017118 (10th Cir. Sept. 13, 2012) [hereinafter Dool].2 See Carlson v. Wiggins, 675 F.3d 1134 (8th Cir. 2012); Kirk v. Carpeneti, 623 F.3d 889 (9th Cir. 2010).3 Currently, 35 states use some method of the “Missouri Plan” to select their judicial nominees. Each with varying forms of how the commission is composed. Commissions are composed of as little as six members (e.g., North Dakota) or as many as 49 members (e.g., Minnesota).4 Jeffrey D. Jackson, The Selection of Judges in Kansas: Comparison of Systems, 69 J. Kan. B. Ass’n (Jan. 2000), at 33-34 (Governor Fred Hall had been defeated in his party’s primary so he decided to go after the next best thing, that being Chief Justice of the Kansas Supreme Court. He convinced a loyal supporter, then Chief Justice, Bill Smith, to resign. Next, he ceded the governorship to his Lieutenant Governor, John McCuish, who then appointed Hall to the vacant Chief Justice position. Alas, the Kansas triple play.). 5 Kan. Const. art. III, § 5. 6 Kan. Stat. Ann. §§ 20-119 et seq. (legislation implementing the amendment); Kan. Stat. Ann. § 20-3004(a) (applying amendment to appellate courts).7 Kan. Stat. Ann. §§ 20-119, 20-120.8 Id.9 Id.10 Kan. Const. art. III, § 5.11 Kan. Stat. Ann. §§ 20-132, 20-3007.12 Kan. Const. art. III, § (a), (e).13 Kan. Const. art. III, § 5(b).14 Nelson Lund, May Lawyers be Given the Power To Elect Those who Choose Our Judges? “Merit Selection” and Constitutional Law, 34 Harv. J.L. & Pub. Pol’y 1043, 1050 (2011).15 Dool, 2012 WL 4017118 at *1.16 Dool v. Burke, No. 10-1286-MLB, 2010 WL 4568993 (D. Kan. Nov. 3, 2010).17 Judge Terrence L. O’Brien and Judge Scott M. Matheson, Jr., concurring, Senior Judge Monroe G. McKay, in dissent.18 See Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626–27 (1969).19 Ball v. James, 451 U.S. 355, 371 (1981); Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 729 (1973).20 Id.21 Dool, 2012 WL 4017118 at *5.22 Id. at *10–11.23 Id.24 Id.25 Id. at *5.26 Id. at *5–7 (interpreting Reynolds v. Sims, 377 U.S. 533 (1964), and its progeny).27 Id. at *7.28 Id. 29 Id. at *9.30 Id. at *12.31 Id. (quoting Lund, supra note 14, at 1053).32 Id.33 Id. (quoting Lund, supra note 14, at 1055).